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Ensuring fair play: the role of the CHRE

The CHRE was established to ensure coordination among the professional regulatory bodies. Dr Gerard Panting explains what this means in practice

A need for better coordination among the healthcare regulatory bodies was identified in the NHS plan and later endorsed by the Bristol Royal Infirmary Inquiry. In response to this, in 2003, the Council for the Regulation of Healthcare Professionals, now the Council for Healthcare Regulatory Excellence (CHRE) was established. As well as coordinating the independent regulatory bodies it acts as a forum to develop universal regulation across the professions.

The CHRE is made up of nine members from the professions, one from each regulatory body, and ten members appointed to represent the public interest. Consequently, there is a majority of lay representation on the new Council. The functions of the CHRE are detailed in Box 1 (below).

Box 1: Functions of the CHRE1

Promoting the interests of the public and patients in the field of the regulation of health professionals

Promoting best practice in professionally led regulation

Reporting annually to Parliament on the CHRE's work with discretion to report on the performance of individual regulatory bodies and to compare their performance of similar functions

Promoting cooperation and consistency across the regulation of all the healthcare professions, in the interests of patients

Developing principles of good regulation

Advising Ministers across the UK on professional regulation issues in healthcare

The CHRE may also:

Refer a regulator's final decision on a fitness to practise case to the High Court (or its equivalent throughout the UK) for the protection of the public

As a last resort, order a regulator to change its rules for the protection of the public (this requires the permission of both Houses of Parliament)

Reviewing regulators’ decisions

From 1 September 2003 to 31 October 2004, the CHRE was asked to consider 526 cases, of which 424 were reviewed and closed without further investigation. During this period the CHRE referred 13 cases (two of which were later withdrawn) to the High Court. Of these, nine were from the GMC, two were from the Nursing and Midwifery Council (NMC), one was from the General Dental Council and one was from the Health Professions Council.

‘…the power to refer fitness to practice decisions made by the regulators to the High Court if it considers that the regulator’s decision was unduly lenient.’2

While section 29 has recently been acknowledged as involving a degree of double jeopardy, the Court of Appeal maintains that the need to protect the public must be the primary concern.

Court referrals

The first case referred to the High Court concerned a nurse found guilty of professional misconduct for accessing pornography at work. The Professional Conduct Committee of the NMC imposed a caution which would remain on his record for five years. The CHRE’s appeal to the High Court was unsuccessful because the appeal court could find no procedural errors or shortcomings in the NMC’s ruling. In fact, the appeal court concluded that the Professional Conduct Committee was ‘as well placed, if not better placed, than a judge or a panel of judges’ to determine if the nurse’s interest in pornography was incompatible with his role as a nurse.3

The second case involved a GP who had been acquitted by the GMC’s Professional Conduct Committee. In this case, the issue before the Court was a jurisdictional point – could the CHRE mount an appeal where there was no adverse finding against the doctor? The High Court decided in the CHRE’s favour – a decision that was then appealed against by the doctor. In the Court of Appeal, it was held that suggesting cases with no adverse finding could not be referred to the court made a nonsense of the Act – designed specifically to give the CHRE the power to refer decisions of disciplinary bodies to the High Court. Accordingly, they dismissed the GP’s appeal.

The third case the CHRE submitted to the High Court was that of a doctor who was found guilty of serious professional misconduct for entering into a sexual relationship with a patient who was depressed, and giving a false date of birth on his curriculum vitae. The Professional Conduct Committee suspended his name from the medical register for three months. The case was referred to the High Court which declined to interfere with the GMC’s decision. Immediately after the decision was announced, the CRHP (as it was then) issued a press release:

‘CRHP was concerned that the GMC did not investigate the allegations adequately and therefore had an incomplete picture of the risk he posed.

CHRP submitted that the decision to impose a three month suspension was unduly lenient and wrong having regard to the GMC’s own guidance and previous decisions about the misconduct of doctors.’3

The CHRP argued that the doctor was found guilty of two of the three most serious kinds of misconduct that may require removal from the register: sexual misconduct and dishonesty.

The press release continued:

‘The GMC guidance also provided that the public interest includes not only the specific risk to individual patients from doctors’ misconduct but also maintenance of public confidence in the profession.

CRHP argued that it was important that women were not deterred from seeking medical assistance because of a lack of confidence in doctors arising out of sexual misconduct…’

In this case the CRHP was concerned that a simple suspension – without further recommendations for action or conditions of practice – left the doctor without sufficient advice and assistance for future practice, therefore posing a continuing risk to the public.

Conclusion

To date, the CHRE, which Parliament anticipated would only launch an appeal in truly exceptional circumstances – perhaps just once or twice a year – has exceeded all expectations. But at whose expense?

In financial terms, it is the taxpayer who foots the bill. Some legal costs will be recoverable if the CHRE wins an individual case, but all other running costs must come from the Treasury – including adverse costs awards when they lose.

However, in human terms, it is the hapless healthcare professional who, having already faced trial before his or her own regulatory body – and often very publicly, must now face a second and perhaps third round of hearings. This will inevitably be drawn out over many months, with all the stress that brings to the practitioner and his or her family.